Month: November 2020

By: Anamika G

 With the advent of the Information Revolution and the dawn of the Artificial Intelligence driven world of the Internet of things, the Global Internet community has witnessed a sporadic expansion of the virtual space. From Business to education to travel and recreation, the Cyber world is today’s generation’s first and last resort. Unsettlingly, however, users’ extreme dependence on the internet for day-to-day activities without being chary of the potential caveats it harbours has been a matter of concern. While the internet has indeed unleashed hitherto impossible possibilities to fuel human efficiency, the vastness of the World Wide Web has also spawned concerns around ‘security’ in the Cyber Space.

Consequently, sovereign nations of the world have presented a modest attempt to chart frameworks regarding their part of the borderless cyberspace in order to ensure that their citizens’ rights and national security and sovereignty is protected, as in the physical world. To that end, the recent decades have seen the formulation of numerous Cyber laws that enumerate the regulatory guidelines and the limits and protections in the virtual world. These laws include protection of intellectual property rights, freedom of speech, and public access to information, among others[1]. Among the existing Cyber laws and policies across the world, there are similarities as well as differences.

Of these, United States of America has the oldest and arguably the most robust cyber laws and cyber security frameworks. In Germany, there is a fast advancing cyber security technology and legal architecture, whereas the United Arab Emirates is an emerging arena for cyber security practices. Cybercrimes and frauds cause huge financial losses and security threats to the internet and economic ecosystems in these countries, to combat which the existing laws, although useful, are insufficient. Also, while each of these countries have delineated legal frameworks that lend themselves to national contexts, attention should also be given to voicing the need for a comprehensive and universally recognised international cyber law framework. Through a comparative study of the Cyber laws in the aforementioned three countries, this paper shall attempt to provide a critical analysis of the cyber security practices of three powers in the virtual arena.

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 CYBER LAWS – THE U.S SCENARIO

 The U.S views cyberspace as an integral component of all facets of American life, including their economy and defence[2]. Being the cradle of the Internet and a superpower in the cyber domain, U.S was also among the first to discover the lethal threats that lay entwined in World Wide Web. Hence, the country has time and again returned to the question of legal regulations on the seemingly ‘un-governable’ cyberspace. As a product of continuing deliberations, the country now has a robust cyber la infrastructure.

In the U.S cyber-security concerns are tackled at the federal level through sector-specific statutes and regulations. The main cyber-security regulations include the 1996 Health Insurance Portability and Accountability Act (HIPAA), the 1999 Gramm-Leach-Bliley Act, and the Federal Information Security Management Act (FISMA). While the HIPAA addresses concerns in the health sector, The FISMA maintains cyber-security standards for federal government agencies and their contractors.  Some other statutes are specific to a single subject matter like the Veterans Affairs Information Security Enhancement Act[3], passed in 2006 and they focus closely on a single government agency, which, in this case is the Department of Veterans Affairs (VA). Besides, populous states like Massachusetts, New York and California already have diverse individual cyber laws.

Some laws, however, have been subject to criticism for being too regulatory and invasive. For instance, Computer Fraud and Abuse Act (CFAA) enacted by Congress in 1986, which makes it a crime to access and subsequently share protected information, have been widely criticized for being too restrictive and dis-incentivising legitimate security research[4]. The Electronic Communications Privacy Act was passed in 1986 allows the U.S. government to access electronic communications such as email, social media messages, and more with a subpoena[5].

Furthermore, given that challenges in the cyberspace are becoming complex and multi-sectoral by the day, an acute need as felt for a uniformly defined national cyber security framework. The existence of cyber regulations at multiple levels and sectors has affected compliance, as companies must wade through different federal and state laws. Thus, in 2018, US President Donald Trump signed into law the Cyber security and Infrastructure Security Agency Act of 2018[6]. In addition to this, U.S has actively pushed the case for international cooperation and some uniformity in regulations in order to face the growing challenges in the cyberspace today.

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GERMAN LAW IN THE CYBERSPACE

Germany has a long history and well implemented tradition of data privacy and the right to personal freedom. German data protection laws are strict and governmental rights to observe people in the cyberspace are limited. However, as cyber-attacks on companies and individuals are becoming much more prevalent, legal developments and deliberations show the necessary, but difficult balancing act between safety and freedom in cyberspace.

Cyber security is governed by several acts in Germany. Sec. 202a and 303a of the Strafgesetzbuch [German penal code] protects data and communication against misuse, hacking and sabotage. Section 303b of the same Code directs punitive action against computer sabotage[7]. The main legal act relating to cyber security is the German IT Security act of 2015. Under the act, Critical infrastructure operators are required to adhere to a minimum level of IT security as well as to report any IT security incidents to the Federal Office for Information Security [BSI], which is Germany’s national Cyber security agency. Also, every company in Germany which processes personal data is subject to the surveillance of either the federal or one of the 16 local data protection authorities

In 2017, Germany passed its new Federal Data Protection Act (Datenschutz-Anpassungs- und -Umsetzungsgesetz EU, the Act). The Act implements the European General Data Protection Regulation (GDPR) and entered into force on 25 May 2018[8] It replaced the former German Data Protection Act (BDSG). Although the Act is only a supplement to the GDPR, it includes various additional provisions that need to be followed: the appointment of Data Protection Officers (DPOs), sensitive personal data, the rights of data subjects; the change of the purpose of processing; video surveillance; fines and sanctions; creditworthiness and scoring etc.

So far, the German legal system has been able to put a good fight against the pressing problems of cybercrime. However, as the German data privacy regime is one of the strictest worldwide[9], the trade-off between security and freedom in cyberspace is a nuanced arena. Nevertheless, Germany has put in a robust cyber law regime to defend it digital sovereignty and data security.

 

UNITED ARAB EMIRATES AND CYBER-LAWS

  The UAE, though an emerging economy, has increasingly been targeted by cybercriminals in the recent past[10] owing to its high levels of economic activity, booming oil industry and fast-paced technological advancements. For instance, one of the major threats during the recent COVID-19 pandemic was sinister cyber-attacks launched by hackers on the servers of the companies thereby causing fear and financial insecurities[11]. Catching up with the time, UAE also has one of the most comprehensive cyber law structures in the Arabian-Middle east region.

The UAE-Law No. 5 of 2012, better known as the Cyber Crimes Law 2012, deals with the Combating of Information Technology Crimes. This law replaced the earlier Cyber Crimes Law 2006.

The UAE CERT (Computer Emergency Response Teams) was established under the supervision of Telecom Regulatory Authority of UAE to help the Government for cyber security information sharing and improving the overall Cyber Security condition in the country. They collaborate with different law enforcement agencies to design policies and methodologies to counter the Cyber Threats. aeCERT collaborates and shares data with other countries CERTS around the globe, which provides opportunities for researchers to improve the posture of information security. UAE’s National Electronic Security Authority (NESA) is the federal body set up to oversee the country’s cyberspace.

The National Cyber Security Strategy 2019 of UAE aims to ‘create a safe and strong cyber infrastructure in the UAE that enables citizens to fulfil their aspirations and empower businesses to thrive.’[12] . The legal framework will cover data privacy and protection, artificial intelligence, block chain, cloud services, and digital signatures etc.

 CONCLUSION

From an analysis of the Cyber security legislations and practicing the three countries – USA, UAE, and Germany – Cyber safety is an actively discussed domain in the develop world as well as emerging economies. While all three nations have certain fundamental regulations in common, there are areas of differences as well. Germany, for instance, has a relatively strict policy on protection of citizens’ privacy which puts limits on states surveillance practices.

Considering the rapid advances in technology, cyber-security is still an evolving realm, which requires nation states to be constantly vigilant about emerging threats while concomitantly correcting the existing ambiguities in the Cyber laws.

At the same time, because Internet is a ‘Borderless’ ecosystem, mere national legislations will not solve the issue of cross border cyber terrorism, fraud or conflicts in determining jurisdictions. Hence, there is a need for international basic law that creates a basic uniform cyber law practice across the nations. Therefore, an effort by the three countries that are cognisant of the importance of cyber safety to make allowance for international cooperation in their cyber-security legislations should be forthcoming.

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[1] US Legal, I. (n.d.). Find a legal form in minutes. Retrieved November 13, 2020, from https://definitions.uslegal.com/c/cyber-law/

[2] The White House, 2018, National Cyber Strategy for USA. Retrieved November 8,2020 from https://www.whitehouse.gov/wp-content/uploads/2018/09/National-Cyber-Strategy.pdf [pg.3]

[3] Craig, L. (2006, December 22). S.3421 – 109th Congress (2005-2006): Veterans Benefits, Health Care, and Information Technology Act of 2006. Retrieved November 8, 2020, from https://www.congress.gov/bill/109th-congress/senate-bill/3421

[4] Reforming the Computer Fraud and Abuse Act. (2018, July 30). Retrieved November 09, 2020, from https://www.charleskochinstitute.org/blog/is-the-computer-fraud-and-abuse-act-ripe-for-reform/

[5] Electronic Communications Privacy Act of 1986. (n.d.). Retrieved November 09, 2020, from https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1285

[6] McCaul, M. (2018, November 16). H.R.3359 – 115th Congress (2017-2018): Cybersecurity and Infrastructure Security Agency Act of 2018. Retrieved November 12, 2020, from https://www.congress.gov/bill/115th-congress/house-bill/3359

[7] Cyber Crime Law. (n.d.). Retrieved November 10, 2020, from https://www.cybercrimelaw.net/Germany.html

[8] Federal Data Protection Act of 30 June 2017 (Federal Law Gazette I p. 2097), as last amended by Article 12 of the Act of 20 November 2019 (Federal Law Gazette I, p. 1626). (n.d.). Retrieved November 10, 2020, fromhttps://www.gesetze-im-internet.de/englisch_bdsg/englisch_bdsg.html#p0014

[9]Germany: Land of Data Protection and Security – But Why? (2018, December 05). Retrieved November 11, 2020, from https://www.dotmagazine.online/issues/security/germany-land-of-data-protection-and-security-but-why

[10] Freelance, M. (2020, May 19). Four of five organisations in UAE faced at least one ‘cyber-attack’ in  2019-study. Retrieved November 11, 2020, from

https://gulfbusiness.com/four-of-five-organisations-in-uae-faced-at-least-one-cyber-attack-in-2019-study/

[11] Sanderson, D. (2020, April 26). Coronavirus: Cyber criminals launch Covid-19 attack barrage. Retrieved November 11, 2020, from https://www.thenationalnews.com/uae/coronavirus-cyber-criminals-launch-covid-19-attack-barrage-1.1009181

[12] National Cyber Security Strategy. (2019). Retrieved November 11, 2020, from https://u.ae/en/about-the-uae/strategies-initiatives-and-awards/federal-governments-strategies-and-plans/national-cybersecurity-strategy-2019

By:Amogh Dabholkar

To elaborate upon the development of the “flag state” — a term made up of two words of rich and deep heritage and history, it was first used in 1000 B.C. by the Egyptians for the purpose of identity. The flag, ultimately gained recognition as the legal regime of a ship. It was used as a tool of understanding where and how a right relating to a ship can be enforced and who, precisely, would be accountable for actions arising therefrom. It also found formal codification in the High Seas Convention (‘HSC’) in 1958 and ultimately UNCLOS in 1982. The concept of Statehood also, arguably created by Vitoria in De Indis de Iure Belli Relectiones found place in the Treaty of Westphalia (1958) which ended the Thirty Years’ War.[1] The Portugese, in the mid-twentieth century had a monopoly over the Indian Ocean which was attempted to be broken by the Dutch by professing the theory of independent, sovereign states having undisputed, sovereign power and control. The doctrine of Mare Liberum also was seen as a milestone in the progress of freedom of global trade and navigation.[2] Gradually, these concepts came to be recognized as principles of customary international law and like developments led to the foundation of the International Law Commission (ILC). The First Conference of the United Nations on Law of the Sea in 1958 led to the drafting of the High Seas Convention in 1958, the precursor to UNCLOS (1982).

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Flag State, fundamentally, is the state/nation in which the ship is registered, that state exercising jurisdiction over ships. In other words, the domestic laws of the flag state will apply to the vessel carrying its flag in high seas and in other areas covered exceptionally in international treaties.

The flag state obligations are mentioned under Article 94 of UNCLOS. Article 94(1) extends the duty of flag states to “administrative, technical and social matters”. It also has to maintain a register containing the names and particulars of all ships and ship owners which, consequently, strengthens the genuine link between States and their flags, a concept that I will explain ahead. Article 94(3) says that every ship must maintain and carry out certain measures to ensure safety of life at sea. What these measures precisely are is enumerated under Article 94(4).

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Moving from flag state obligations to marine pollution, the already-increased concerns over pollution at sea shot up drastically after 1960 owing to 3 incidents — Torrey Canyon in 1967, Amoco Cadiz in 1978 and Exxon Valdez in 1989. Safety of life and the marine environment as a whole came under the radar and the need to protect the marine environment under Article 217 of UNCLOS is a sufficient measure to protect and safeguard the marine environment from pollution caused by vessels. These incidents and the dire need to have a separate law for protecting the oceans and developments in the field of international law led to the creation of the International Convention for Prevention of Marine Pollution from Ships, 1973 which later came to be modified by the Protocol of 1978. (These enactments have been mentioned by the author as they form a jurisdictional and regulatory mechanism extending to all ocean-going vessels and their activities.)

Some of the more relevant and prevailing issues — absence of recognition of fishing operations and fishing vessels under Article 94 or any other provision in the UNCLOS, lack of ownership identification in ship registration, lack of ownership identification and a mere name-sake encapsulation of the genuine link concept under Article 91 — make it even more difficult to come up with a concrete mechanism of ensuring and enforcing genuine links, which is the dire need in the maritime world today.

It has been observed that certain member states, being reluctant to the idea of defining concretely the criteria for establishing a ‘genuine link’ between the ship and its flag, (as it would obliterate the open registries of that nation thereby precluding foreign influx of finances and lead to lesser and lesser registrations) prefer to keep the issue of ship registration ambiguous and at the discretion of member states (which is why these states are known as ‘flags of convenience’). However, the International Tribunal of Law of the Sea (ITLOS) in 1999 in M/V Saiga No. 2 Case (St Vincent and the Grenadines v Guinea)[3] reiterated this view that the ‘genuine link’ concept is to be viewed in the context of effective implementation of the flag State obligations and not for determining the criteria of when it would be apt for States to allow ships to fly its flag. After considering Article 5 of the 1958 HSC, the deliberations of the ILC and UNCLOS I on the subject, and Article 94 of UNCLOS 1982, ITLOS stated:

“The purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.”[4]

 THE ENRICA LEXIE CASE: THE JUSTNESS IN THE AWARD

Dr Kate Lewins, a specialist in international maritime law at Murdoch University, submitted:

“The result, more often than not, is that there might be multiple [countries] entitled to claim jurisdiction over a particular criminal act, based on the flag and location of the ship and the nationalities of the people involved. [Which country will take the lead] may well end up being one negotiated through diplomatic channels, largely based on pragmatism.”[5]

Eight years after two Italian marines shot down two innocent fishermen on their fishing vessel ‘St. Antony’, several enquiries arose. One of the prominent issues that came up was the one with respect to jurisdiction. Who would have the rightful jurisdiction to try the two Italian marines who, guising the two fishermen as pirates, had killed them? After a flood of newspaper articles and other media reports, a few side issues that were up for consideration were — where did the incident take place? Was it the high seas as claimed by Italy or was it the exclusive economic zone of India as contended by India? Did the International Tribunal of Law of the Sea have jurisdiction to entertain the dispute between the two countries? Did Italy breach India’s rights and particularly, its right to navigate on its own EEZ? All these questions have been put to rest by the Award passed by the five-member tribunal referred to by ITLOS. In this sub-space, we shall have a look at the contentions put forth by both the countries at loggerheads before the arbitral tribunal and the decision of the esteemed tribunal.

After the dispute was referred to by the esteemed five-member tribunal referred to by ITLOS, it decided the matter with all competence and justness. Before the tribunal some of the key contentions of Italy were as follows:

• By acting in consonance with certain provisions of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 and with the Ministry of Home Affairs Notification No. S.O. 671(E) dated 27 August 1981, India had acted in breach of Articles 33(1), 56(1), 56(2), 58(2), 87(1)(a) and 89 of UNCLOS;
• By forcefully directing Enrica Lexia to Kerela coast, it had acted in violation of Italy’s freedom of navigation viz. Article 87(1)(a) and Italy’s exclusive jurisdiction over the commercial vessel in breach of Article 92 of UNCLOS and Article 300 read with Article 100 of UNCLOS as it had abused its right to seek Italy’s cooperation in the repression of piracy;
• By instituting penal proceedings against the marines of Italian nationality, India was in breach of Article 97(1) of UNCLOS;
• By ordering arrest and detention of Enrica Lexie, India was in breach of Article 97(3) of UNCLOS.

India, on the other hand contested all these submissions and said that by throwing open fire at its non-commercial vessel ‘St. Antony’ and killing two Indian fishermen on board, Italy violated:

• India’s sovereign rights under Article 56 of UNCLOS;
• India’s rights to explore and navigate in its EEZ under Article 58(3);
• India’s right and freedom of navigation under Articles 87 and 90;
• India’s right to have its EEZ maintained for peaceful reasons and conditions under Article 88 of UNCLOS.

After considering the submissions of both the countries, the arbitral tribunal passed its award. The award, primarily, by a 4:1 vote ratio, said that it has the appropriate jurisdiction to entertain the dispute and that it found India’s counter-claims admissible, that India has not violated Articles 87(1)(a) and 92 para 1, 97 paras 1 & 3, 100 and consequently 300. It, in a somewhat blow to India’s teeth, held that the Italian marines were entitled to immunity. But this was the only point against India’s interests as it went further on to hold that Italy, having committed to initiate criminal proceedings against the marines, India should cease all criminal proceedings initiated against them, that Italy, by breaching Articles 87 and 90, has wrongfully interfered with the navigation of ‘St. Antony’ and finally, that India is entitled to payment of compensation for loss of life, physical harm, material damage to property and moral harm suffered by captain and other crew members of ‘St. Antony’ which, by the nature of the offence, cannot be repaired through compensation.[6]

If not anything, the compensation awarded to the families may counter the grief they have borne by the sudden and sad demise of our two countrymen.

CONCLUSION: THE WAY AHEAD

Coming to the more recent issues and their solutions, while a lot can be done to curb marine pollution, polar issues and piracy a lot is being done for its eradication and prevention which deserves attention and elaboration. Talking about marine pollution, the jurisdictional authority with regards to marine environmental pollution is the International Maritime Organization (IMO) — a UN specialized body/agency. Some of the programmes initiated by the United Nations are: Regional Seas Programme, Global Programme of Action for Protection of the Marine Environment from Land-based Activities. The United Nations Economic, Social and Cultural Organization (UNESCO) through Intergovernance Oceonographic Commission co-ordinates programmes on marine research, observation systems, hazard mitigation and better managing ocean and coastal states. MARPOL, 1973 as modified by the Protocol of 1978 and 1954 International Convention for the Prevention of Pollution of the Sea by Oil. For the purpose of ensuring safety and regulation of travel and governance between the two poles, the UN has entered The International Code for Ships Operating in Polar Waters (Polar Code).[7]

While environmental pollution and polar-centric regulatory activities are significantly relevant in the list of UN activities, Piracy takes the cake. In recent years, there has been a surge in piracy off the coast of Somalia and in the Gulf of Guinea. The consequences of piracy are: loss of life, physical harm or hostage-taking of seafarers, significant disruptions to commerce and navigation, financial losses to shipowners, increased insurance premiums and security costs, increased costs to consumers and producers, and damage to the marine environment.

To curb and prevent piracy, the IMO and UN have adopted additional resolutions to complement rules in UNCLOS, the UNODC through its Global Maritime Crime Programme combats transnational organized crime of the coast of Horn of Africa and Gulf of Guinea. Some of the suggestions the author would like to add to the credible and laudable activities of the UN are: to formulate a special mechanism to carry out result-oriented, speedy and efficacious trials, imprisonment of piracy suspects as well as developing maritime enforcement capabilities through facilitation of training programmes. A range of activities can be undertaken by the State authorities — from piracy prosecution models, prisoner transfers and training of members in the judicial system of the Atlantic and Indian Ocean to full time mentoring to coast guards and police units in Somalia, Kenya and Ghana.[8]

 

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[1] Publ. 1696, ed. Simon ,James Crawford, “The Creation of States in International Law”, 2nd Edition, Clarendon Press, Oxford p.9.

[2] Law of the Sea, Oceanic Resources, Jones p.9.

 

[3] Nivedita M. Hosanee, Defining the genuine link, THE RIGHT OF THE FLAG STATE TO SAIL SHIPS AND THE GENUINE LINK CONCEPT, (23rd September, 2020, 8:20 PM),

http://www.un.org/Depts/los/Judg_E.htm.

[4] Ibid.

[5] Dr Kate Lewins, Submission 1, p. 2 (26^th September, 8:07 PM).

 

[6] Source: Award between India and Italy: https://docs.pca-cpa.org/2020/07/a6b16920-award-extracts-for-advance-publication-on-2-july-2020.pdf (25th September, 8:30 PM)

[7] United Nations, Protection of marine environment and biodiversity, Oceans and the Law of the Sea (26th September, 9:37 PM) https://www.un.org/en/sections/issues-depth/oceans-and-law-sea/.

 

[8] Ibid.

By: Siddhant Tiwari

ABSTRACT

Mankind has yearned to take to the skies since centuries[1], and this interest is visible in the fact that aviation is one of the fastest progressing field in the world, growing by leaps and bounds since the Wright Brothers first took to air. Today, as we stand at the cusp of yet another milestone, that is the onset of Unmanned Aerial Vehicles (UAVs) or drones as they are more popularly referred to, it is quite clear to ascertain where the future of aviation is headed. Drones are not just a flash in the pan, rather they are the ‘new normal’. Drones are everywhere- be it delivering parcels, launching an attack on the adversary, or even spraying fertilizers on large swathes of land[2]. This article compares the various regulations centered around safe and controlled operation of drones in the USA, UAE, and Germany, and strives to understand where the difference in core values of the respective countries lies. Three parameters shall be used here for comparison, namely requirements for registration of user and drone, general rules for hobby/recreational flying, and rules in force for commercial UAV flying.

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EVOLUTION OF DRONE LAWS

Unlike general aviation technology (both civil and military), which evolved over almost a century post the Wright Brother’s first flight, UAV technology has been around for far less time in comparison[3]. Lawmakers and experts have found it hard to keep up with the blinding advances in this field, often lagging behind and catching up later on. With that context in mind, it would be unfair to say that drone laws are insufficient or incapable of encompassing all the facets of usage of drones. It is one of the fields where ‘trial and error’ method has proved to be more accurate than any other method, especially because no one could have foreseen that UAVs would become such an integral part of our lives in such a short span of time.

This has been enabled by developments in allied fields such as AI, improved computing, lighter and stronger materials for aviation purposes and last but not the least, a change in consumer mindset. Most of the developed nations have come out with their own set of drone laws after much deliberation and learning from experiences. Some of them are discussed in detail below.

 

DRONE REGULATIONS IN THE U.S.A.

The US Federal Aviation Authority (FAA)[4] is the overseeing body when it comes to drafting of rules and regulations related to aviation in US, including drone laws. Rules may differ slightly from state to state across mainland America[5] however their essence remains essentially the same. As far as requirements for obtaining a commercial drone pilot license are concerned, an aspiring user must be able to read, write and speak English (exception may be made for persons with speech/hearing disabilities) and must generally be in a sound mental and physical state to operate the UAV. The minimum age requirement for the applicant is sixteen besides which two tests/screenings need to be cleared. The first one is Aeronautical Knowledge Test (also known as Part 107 Test)[6]. A safety screening conducted by TSA (Transport Safety Administration) also needs to be cleared to obtain the license.

 

For hobby flying, no license is required, and the rules as mandated by FAA explicitly bar a hobby flyer from undertaking any kind of commercial flying. The UAV needs to be registered on the FAA portal built for this purpose. All flying is to be conducted in visual LoS (Line of Sight) and away from other air-traffic as well as scenes of emergency. Most importantly, the drone must weigh below 55 Lbs. and it can only be flown in Class G airspace. For operation in higher classes of airspace, airspace authorization must be sought from the concerned department[7].

 

Commercial drone flying can be taken only after a Remote Pilot Certificate is obtained from FAA and just like in the case of hobby flying the drone has to be registered with FAA. The weight of drone including payload can not exceed 55 Lbs and it can not be flown above 400 ft or faster than 100 Mph. All commercial flying is to be undertaken during daytime while avoiding populated areas and directly flying over people. A manned aircraft has the right of way in all cases. Class G airspace condition can be waived off upon receiving FAA Part 107 waiver. USA has been at the forefront of commercial drone development as well as for military purpose. It goes without saying that the rules will continue to get amended with newer technologies as well as changing requirements.[8]

DRONE REGULATIONS IN THE U.A.E.

The UAE General Civil Aviation Authority (GCAA) is the apex body overseeing drone rule creation and enactment in the emirate. Just like in the US, a drone pilot has to first and foremost obtain a flying license, called Operator Training Certificate from any of the approved academies and get his/her drone registered with the GCAA[9]. Post obtaining the NOC, the rules are quite simple and straightforward. There are two important rules in this regard. The first one clarifies that flying near airports is strictly prohibited in order to avoid near miss situations with civil aircrafts, as has happened in the future. The second rule is about abstaining from flying in the ‘No-Fly Zones’, which are clearly demarcated and can be seen using the UAE Drone Fly Zone Map application[10]. In short, the country has managed to simplify the registration and air space management aspect quite effectively.

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After obtaining requisite NOC using the process mentioned above, a recreational flyer may operate their drone within the ambit of certain rules. The drone must weigh 5 Kg or less and must remain in LOS and not fly beyond 400 ft. Image/video capturing is disallowed unless the operator has a valid Emirate ID registered with the GCAA. A minimum distance of 5 km has to be maintained from the outer fence of all aerodromes/heliports/locations from where any aviation activity is being undertaken. Certain rules are common between hobby and commercial flying namely avoiding creating nuisance to the common public or endangering any personal/public property. In case of re-selling of drone, owner is responsible for informing GCAA through the proper channel. Minimum age of 21 years is necessary to fly drones weighing more than 25 Kg.

 

In the case of commercial drone operations in UAE, the operator must mandatorily pass the UAS GCAA exam on top of holding the standard operators’ certificate. Most importantly, the operating individual/company has to take requisite approval for every single flight operated towards commercial purposes. The permission ceases to be valid after completion of the sortie for which it was obtained. Additionally, it is important to know that anyone desirous of operating a drone in Dubai specifically, must also follow the rules for remotely piloted aircrafts established by the Dubai Civil Aviation Authority (DCAA)[11] on top of rules prescribed by GCAA. In case of loss or accident of a drone, the operator is solely responsible to inform about the same to GCAA as early as possible.

 

DRONE REGULATIONS IN GERMANY

The apex authority on all matters pertaining to aviation in Germany is the Federal Aviation Office (FAO). In 2017, a new Drone Regulation came into force[12] in the country which clearly outlined the rules and requirements for any individual/company seeking to undertake drone operations. Interestingly, Germany has clubbed some drone rules for applicability on RC model aircraft[13] which have been in vogue since many decades and are not necessarily seen in the same light as drones. Notwithstanding, a ‘Certificate of Knowledge’ is required for operating all UAVs weighing above 2 Kg. These certificates are valid for 5 years and minimum age to apply is 14 years. No flying permit is required for drones weighing upto 5 Kg. However, for all drones above 5 kg and for all night flying operations, a flying permit is mandatory.

 

The Federal Ministry of Transport & Digital Infrastructure does not explicitly differentiate between hobby and commercial drone flying, and this is where it is most different from its sister bodies in USA and UAE[14]. The focus is more towards aerospace hygiene and safety of men and material. Some might argue that such a generalized approach in formulation of rules creates a lacuna in law enforcement while other proponents of the theory are all for its simplicity and transparency.  With the above fact in mind, the country mandates that all drones regardless of their weight and usage must be insured and all drones above 250 gm must carry a fireproof sticker for easy identification of drone in case of loss/accident. The sticker should carry the basic details of user like name, address, and contact details.

 

Additionally, all UAVs have to maintain a minimum distance 1.5 Km from an airfield/helipad. A permit is required to fly above 100 meters (50 meters in case of controlled airspace). Direct visual contact is mandatory as far as practicable. Basic courtesies like not causing disturbance to fellow citizens, avoiding damage to property and maintaining minimum distance of 100 m from large gatherings are to be followed[15]. It can be said that this is a more humane approach towards formulation of guidelines, albeit at the cost of certain ambiguity and scope of inadvertent law infringement.

 

CONCLUSION

On a case to case basis, the rules and regulations around the safe and productive use of UAVs in USA, UAE and Germany have each got their merits and de-merits. The positive thing to note here is that these nations have attempted to keep the process as simple to understand as possible. Many a times, several noble initiatives and technologies are nipped at the bud for the lack of supporting legal framework, or simply because the government demonize them before fully understanding them. It is heartening to note that these three nations have gone all out to support this upcoming technology and are continuously working to further streamline the regulations and processes.

 

Drone laws have evolved massively from their initial days. It has certainly taken a lot more time and debate to create and implement them than should have normally taken, and this delay can easily be attributed to an array of ethical and security issues that stem from drone operations. Despite all these rules, it is comparatively easier for negative elements in the society to misuse UAVs for all sorts of nefarious purposes[16]. As drones become progressively better with each passing day, it remains to be seen if rules and regulations can keep up with the pace of technical development, what with concepts like AI and IOT not coming into the fray and making the process of law formulation for drone operations even more complicated[17]. As in the case of above three states, each has something unique to offer. While USA focuses on specifying each technical aspect to the dot, UAE has made it easier for users to access the information thereby ensuring higher abidance. Germany, on the other hand, has kept the rules simple and inclusive in hope of ensuring easier adaptability to the rules.

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[1] Tim Sharp, “The First Hot-Air Balloon Flight” Space.com, Apr 09, 2019 (https://www.space.com/16595-montgolfiers-first-balloon-flight.html)

[2] CB Insights, ’38 Ways Drones Will Impact Society: From Fighting War to Forecasting Weather, UAVs Change Everything’,  Jan 9, 2020 (https://www.cbinsights.com/research/drone-impact-society-uav/)

[3] Meenal Dhande, ‘The Current Scenario of Global Drone Regulations & Laws’, Geospatial World, 19 Nov 2016, (https://www.geospatialworld.net/article/present-global-drone-regulations-laws/)

[4] Federal Aviation Authority (FAA), ‘Unmanned Aircraft Systems’, faa.gov, (https://www.faa.gov/uas/)

[5] National Congress of State Legislatures, ‘Current Unmanned Aircraft State Law Landscape’, ncsl.org, (https://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx)

[6] Federal Aviation Authority (FAA), ‘Become A Drone Pilot’, faa.gov, (https://www.faa.gov/uas/commercial_operators/become_a_drone_pilot/)

[7] Grupo One Air ‘US Drone Laws: New FAA Regulations for UAVs’ (https://www.grupooneair.com/us-drone-laws/)

[8] IV Kovalev, AA Voroshilova, MV Karaeva, Journal of Physics: Conference Series, ‘Analysis of the Current Situation & Development Trend of the International Cargo UAVs Market’, (https://iopscience.iop.org/article/10.1088/1742-6596/1399/5/055095/pdf)

[9] UAE General Civil Aviation Authority (GCAA), ‘Application for Unmanned Aircraft Registeration’, www.gcaa.gov.ae   (https://eservices.gcaa.gov.ae/Drone/UnmannedAircraftRegistration.aspx)

[10] UAE General Civil Aviation Authority (GCAA), ‘UAE Fly Zone for Unmanned Aircraft/Drone’, www.gcaa.gov.ae  (https://www.gcaa.gov.ae/en/Pages/noflyzone.aspx)

[11] Dubai Civil Aviation Authority (DCAA), ‘Application for Issuing a Permit to conduct any Aviation Related Activity’, dcaa.gov.ae, (https://www.dcaa.gov.ae/services/aviation-related-activities/issuing-permit)

[12] European Aviation Safety Agency (EASA), ‘European Plan for Aviation Safety’, lba.de (https://www.lba.de/SharedDocs/Downloads/DE/SBl/SBl1/GARoadmap/EPAS.pdf?__blob=publicationFile&v=1)

[13] Drone Rules, ‘Drone Regulations: Germany’, dronerules.eu (https://dronerules.eu/da/professional/regulations/germany)

[14] BMVI, bmvi.de, ‘Clear Rules for the Operation of Drones’, (https://www.bmvi.de/SharedDocs/EN/Articles/LF/clear-rules-for-the-operation-of-drones.html)

[15] UAV Coach, ‘Drone Laws in Germany’, uavcoach.com (https://uavcoach.com/drone-laws-in-germany/#:~:text=Drones%20may%20not%20fly%20above,328%20feet)%20without%20a%20permit.&text=Drones%20weighing%20up%20to%205,all%20drone%20operations%20in%20Germany)

[16] PK Jaiswar, ‘Misuse of Drones has Punjab Security Agencies on Toes’, The Tribune, Jan 20, 2020 (https://www.tribuneindia.com/news/punjab/misuse-of-drones-has-security-agencies-on-toes-28562)

[17] Marcus Roth, ‘AI in Military Drones & UAVs’, Emerj.com, Nov 22, 2019 (https://emerj.com/ai-sector-overviews/ai-drones-and-uavs-in-the-military-current-applications/)

By: Shubham Mathur

INTRODUCTION

For the smooth running of the company, the role and duty of a director is essentially significant. Stipulating and clarifying the roles and obligations of the company’s directors helps to enhance corporate governance and stability, contributing to increased development and prosperity in the corporate sector.

INDIA

In the Companies Act, 2013, the position of director was properly laid down. In this aspect, the former company law of India, i.e. the Companies Act, 1956, was deficient. A groundbreaking piece of legislation in this regard is considered to be the new Companies Act, 2014. The roles and obligations of the directors comprising the independent directors are properly and clearly specified and explained. This guarantees greater and flawless corporate governance and governance. It helps and empowers beneficiaries, regulators and courts to judge and control more critically and efficiently the directors’ activities and obligations.

With updated corporate governance principles, i.e. the Updated and New Clause 49 of the Listing Agreement of the Securities and Exchange Board of India[1], the new Companies Act, 2013 must be read. This will bring the corporate governance requirements of SEBI into near alignment and compliance with the provisions of the Companies Act in relation to the companies listed. The updated provisions of the Act relating to the duties of directors were made effective as of April 1, 2014, but the updated corporate governance principles of the SEBI were made effective as of October 1, 2014.

Directors are considered to be key managers in a business that is of particular interest to the companies mentioned. They may hold several senior and responsible roles in companies, such as Managing Director, Manager, Whole Time Director, or Independent Director.[2] Thus, the effective, flawless, and very progressive management of an organisation, and the desired growth and profitability of its companies, are certainly largely dependent on the competence and trustworthiness of its directors. A director means a director appointed to the board of directors of a corporation, which is the collective body of its directors.

DUTIES OF DIRECTORS UNDER THE COMPANIES ACT, 2013

The roles and duties of directors set out in the Indian Companies Act of 2013 can be broadly divided into the following two categories:

1. The functions and obligations that promote and encourage the sincere investment of managers’ best efforts in effective and prudent corporate management, the elegant and rapid resolution of various business-related concerns, including those raised by red flags, and the complete sophistication and wisdom of decisions to avoid unnecessary organisational risks.
2. Trust duties that ensure and ensure that company directors always maintain, over and above their own personal interests, the interests of the company and its stakeholders.

The following duties and obligations have been levied on the directors of companies under Section 166 of the Indian Companies Act of 2013-[3]

• In accordance with its Articles of Association (AOA), a director of the organisation has to act.
• A director must always behave in good faith to support the company’s objects, which will support the company’s objects. This will support the business as a whole and protect the best interests of the company’s stakeholders.
• With proper and fair consideration, ability and diligence, a director must exercise his duties and exercise independent judgement.
• A director of a corporation shall not be involved in a situation in which he may have a direct or indirect interest that contradicts the interests of the company or may conflict with them.
• A company director shall not receive or attempt to obtain any undue benefit or profit either for himself or his family, partners or associates and shall be responsible for paying the company an amount equal to that benefit if such director is found guilty of making any undue gain.A business director shall not allocate his office and any appointment so rendered shall be invalid.
• If the company director violates the provisions of this section, a fine of not less than one Lakh Rupee may be levied on the company director, which may be extended to five Lac Rupees.

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INDEPENDENT DIRECTORS

The CA-2013 liability regime not only imposes on the directors of Indian companies the above-mentioned duties and responsibilities, but also encourages the independence and equity of a company’s board of directors. Therefore, the new Indian Companies Act of 2013 also lays down the roles, duties and responsibilities of independent directors. An Independent Director is a member of the board of directors of a company that does not have a financial agreement (with the exception of sitting fees) with the company or is entitled to own shares in the company. In the earlier Indian Companies Act of 1956, there were no clear provisions for independent directors and only the old clause 49 of the SEBI listing agreement contained requirements for the induction of independent directors to the listed companies.

The new Indian Companies Act of 2013 specifies that, as independent directors, all listed companies must constitute at least one third of the total size of their directors, and also empowers the Government of India to include other categories of companies within the scope of that provision or requirement (Section 149 of the CA-2013).[4] To strictly comply with this mandatory provision, public limited companies composed in compliance with the former CA-1956 shall be granted a grace period of one year. Again, for more than two consecutive terms, independent directors are not eligible to hold office for a period of five years.

Under the current structure, the roles and duties of independent directors have been significantly expanded, and several new areas have been addressed prudently. Broadly, the highly responsible role of arbitrators within the business among various constituencies is intelligently assigned to them. Therefore, the latest rules for independent directors of limited companies are certainly very positive for transparent and sound corporate governance and are highly favourable for the company and all its shareholders. Some of the most relevant functions, duties and liabilities of independent directors are the following (as per Schedule IV of the CA-2013)-

• An independent director must assist in providing the board with equitable and independent judgement.
• An independent director needs to protect the interests of all stakeholders and support them. In that direction, all his / her acts should be.
• An independent director needs to conciliate and reconcile the shareholders’ competing interests.
• An independent director must attend and participate regularly in the meetings of the committee board.
• In an objective and unbiased manner, an independent director must report. He should be ethical and not break the code of ethics in the business or commit any fraud.

UNITED ARAB EMIRATES

Directors’ duties and responsibilities in the United Arab Emirates (UAE) come from various legislative sources and there is no consolidated legislative structure addressing the duties and responsibilities of directors under the law of the UAE. The terms’ manager ‘and’ director ‘are used interchangeably in UAE law. The rules and regulations affecting directors are taken from different sources in the UAE, including-

• UAE Federal Law No. 2 of 2015 concerning Commercial Companies (“Company Law“).
• Federal Law No. 5 of 1985 on Civil Transactions (“Civil Code“).
• Federal Law No. 3 of 1987 Promulgating the Penal Code (“Penal Code“).
• UAE Federal Law No. 18 of 1993 on Commercial Transactions (“Commercial Transactions Law“).

DUTIES OF DIRECTORS UNDER UAE COMPANY LAW

In the performance of a prudent person in the performance of his duties, a director must always act. The acts performed by a director must always be in order to promote the mission and powers of the company given to him by the shareholders. There are situations where the director is expected to behave in compliance with the internal regulations and supervision of the company, including the application of particular authorities provided in the sense of the company’s memorandum of association or by internal resolution or by the power of attorney. Accordingly, it is important for the director to understand and operate only within the jurisdiction of the powers bestowed by the organisation.[5] It is important, in view of the above, that managers ensure that the necessary internal approvals have been obtained before any contractual arrangement is reached for the company.

In addition, the Companies Law provides that any scheme seeking to relieve the director of personal responsibility resulting from the mismanagement or unauthorised use by the company of the powers vested on the director by the company shall be void.[6] When read together, the above clauses may be interpreted as meaning that the director will not be relieved of personal liability on the part of the director as a result of any misuse of the powers conferred by the company or of actions performed by the director in violation of the law in force.[7] There is no restriction against a company receiving directors’ liability insurance for a director or compensating a director for actions validly taken by a director in the normal course.

Other duties of the directors’ are-

• The Director is responsible for the planning and authenticity of the Annual Reports.
• Conflict of Interest-Unless accepted by the shareholders of the company, a director has to fulfil his duties with the business line of the company.
• Confidentiality- A director should not disclose the secret of the company or damage the business of the company.
• Resignation Timing- A director may only resign at a time that does not cause harm to the company, according to the Civil Code.
• Liability to others- If the director is found to have committed fraudulent actions, a liability claims against him or her can be brought by the corporation and/or the shareholders; the director is therefore liable to third parties.

In the Commercial Transactions Law and Penal Code, there are several provisions as to how courts should treat insolvent companies and their directors. In this regard, Article 882 of the Commercial Transactions Law, which states that directors may be liable to a custodial sentence in the event that they are imprisoned, is of particular importance.

• They also failed to provide adequate details in the financial books and records of the company to reflect the true financial condition of the company.
• They do not have information requested by the court or trustee in bankruptcy or whether they are providing false information knowingly.
• Where the assets of the company have been sold at less than their value in an effort to prolong the suspension of payment of debts or the company’s declaration of bankruptcy, or where any illegal action has been taken by the directors to acquire credit or funds in order to achieve the above.
• If, at a time when the company is no longer in a position to cover its debts, the director’s bargain with all of the assets of the company in order to retain those assets outside the creditors’ control.

The roles and duties of a director in the UAE were these. The study of the company’s risks requires due consideration.

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UNITED STATES OF AMERICA

In essence, US public corporations have a unitary board structure, which implies a framework of one tier. This is governed by Section 141 of the DGCL.[8] Section 141(b) of the DGCL specifies that there be one or more members on the board. The number of directors is determined by the certificate of incorporation of the company or by other bylaws. The optimal size of a board is between 9 and 12 directors, and a corporation must have no less than 6 and no more than 15 directors.

DIRECTORS DUTIES AND LIABILITIES

Directors owe the company and its shareholders a fiduciary duty of care and allegiance.

• Duty of care-The duty of care requires directors to act in a similar role with the degree of care that an ordinarily conscientious person would use in similar circumstances. The duty of care allows directors to act on an informed basis, after fair inquiry and deliberation. Directors are expected to rely on management and experts, where it is reasonable to do so.
• The duty to act in good faith is a secondary function of the duty of allegiance. Generally speaking, the obligation requires administrators to act fairly and truthfully, in the best interests of the organisation, and in a way that is not knowingly unethical or contrary to public policy. The following are the liabilities of the directors under the US Law-
• Directors are subject to liability for their acts and inactions, but stringent provisions of liability generally apply. In general, the rule of business judgement may be enforced by the courts, which demands that directors and officers act informedly, in good faith and in the best interest of the corporation. The court would not discuss the merits of the judgement of the underlying board if the presumption is not settled by the complainant.[9]
• In certain situations (such as the sale of a company), a different standard of judicial review can apply. Document provisions governing protection from liability, compensation and creation of expenses, as well as insurance for directors and officers, are usually covered by directors.

CONCLUSION

Taking into account the people and the world in which they reside, the laws of the three listed countries are created. There are some loopholes in the legislation which can be amended. Given the Indian angle, it is very clear that CA-2013 genuinely seeks to make corporate management and governance in India very successful, fully accountable, transparent and maximally beneficial to all stakeholders and related professionals through this intelligent legislation on the duties and responsibilities of managers in Indian companies.

[1] Clause 49 of the Listing Agreement of the Securities and Exchange Board of India

[2]Ministry of Corporate Affairs, Management And Board Governance http://www.mca.gov.in/MinistryV2/management+and+board+governance.html

[3] Section 166 of Companies Act, 2013

[4] Section 149 of Companies Act, 2013

[5] Douglas G. Smith, Mark Gilligan,Duties and Liabilities of Directors in the United Arab Emirate, Squire Patton, https://www.esquireglobalcrossings.com/wp-content/uploads/sites/21/2016/02/duties-of-directors-in-the-uae-alert.pdf

[6] Ibid

[7] Mojaged Al Sebae, Nadim Al Jisr, Managers’ and directors’ duties and liabilities under the UAE law, https://mena.thomsonreuters.com/content/dam/openweb/documents/pdf/mena/white-paper/managers-and-directors-duties-and%20liabilities-under-the-uae-law.PDF

[8] Section 141 of Delaware General Corporation Law

[9]  Robert Treuhold, Corporate governance and directors’ duties in the United States: overview Stephen Giove, https://uk.practicallaw.thomsonreuters.com/9-502-3346?transitionType=Default&contextData=(sc.Default)

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By: Yadav Rohit

MEDIATION can be defined as one of the alternatives for the Dispute Resolution process, which consist of a precise set of procedures. Where a Neutral Third acts as Mediator and assists the parties to discuss the dispute in much appropriate manner in order to reach a satisfactory conclusion and acceptable by both parties. The whole meeting is held in much confidential manners and also provides the opportunity two both parties to put forth their version of disputes and demands in order to resolve their disputes.

Mediation is also known as extended hand of the law because this process provides various ways in order to reach the solution without being constrained by laws and its long procedures. This process is much more effective if this has been chosen by the both parties to resolve their disputes. Mediation, particularly are not that much into trend throughout the globe not because of being ineffective but due to lack of awareness in the masses and they rely more on the lengthy and expensive court proceedings as the only reliable source for justice.

This process is much into consideration in the modern world and throughout the globe in order to resolve the dispute in various different parameters unless its in public interest. Apart from this effective alternative, there are various significant aspects of this process in order to deal with the number of disputes and the following are:

1. Number of parties can engage over one issue or more.
2. This can be totally by parties or the courts order.
3. Unbiased third parties do assist the parties in disputes.
4. Mediators’ suggestions are not mandatory to bind by the parties in dispute.
5. Meeting in the process is totally confidential in nature.
6. Mediation cannot be accessed in case of Penal and other heinous crimes.

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GLOBAL OUTLOOK OF MEDIATION: Mediation is still not the first priority of the people or country in order to resolve their dispute, and International scenario Mediation faces many problems regarding the jurisdiction of Legislation and statutory provisions and rules pertaining to mediation is much constraint due to the bound law of different countries. In order to overcome this obstacle various International Firms took the initiative to collab with various other International forums and make bridge to provide legal assistance to the international clients according to there norms and condition and laws abiding in the respective country. This gave the great break through to the International Trade mediation and authorised forums used to appoint various mediator lushed with skills in order to assist there disputes and provide vital solution to the parties and charge there fees by the parties in disputes to the firms. In order to make mediation as power full alternative in order to resolve various disputes among the parties are achieved by various International Firms are as follows:

• The International Chamber of Commerce.
• The Singapore International Arbitration Centre.
• International Mediation Institute.
• Indian Institute of Arbitration and Mediation.

It have been noticed that there is tremendous growth of  Mediation  as alternative dispute resolution  in the WIPO (WORLD INTELLACTUAL PROPERTY) according to the recent survey by the authority.

EFFECTIVE MEDIATION STRATEGIES:

There are various strategies used by the mediator in order to provide much efficient advices and suggestions to the Parties in dispute to reach their specific solutions of their issues and the following are some Strategies:

• Procedural Strategies – The mediator controls the agenda, timings, release of press and other essential arrangements and also control the formality and flexibility of the meet ups and this strategy helps to reduce the stress and anxiety of the parties in dispute and provide better space to resolve the conflicts.

In year 2002 till 2004, the Organization of America States, the United Nations Development program and Jimmy Carter opened a Dialogue between Venezuelan President Hugo Chavez Fraiz, the Government and the opposition and the mediation was conducted in order to reconcile the divided society and preserve the democracy while preventing aggressive conflict.

• Communication – Facilitation Strategy helps the mediator to work passively and focusing on facilitating and communication between parties.
• Directive Strategies – In this form of strategies mediator act bit harsh to the parties in order to accept the discussion or the conclusion either by threatening parties with diplomatic sanctions or incentives while being in humanitarian aid.

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 MEDIATION AT INTERNATIONAL FRAMEWORK :

Mediation has played major role in various International conflicts throughout the globe and have rich history in order to resolve the Disputes of various countries like Britain, Nigeria and Peru each nation took benefits of Mediation. The Acta De Brasailia was signed in year 1998 to resolve the dispute between Ecuador and Peru. In which Brazil, Chile, Argentina and the United States played a third part role in order to assist both the parties in disputes. The main purpose of the said agreement was to create peace perks or adjacent zones of ecological protection, on both sides of the border in the said region of Cordillera del Condor. In last 10 years, very great example of the mediation with good faith in order maintain the future consequences of the countries lying in historically politically tense Levant region (Syria, Lebanon, Israel, Jordan and Palestine) have been observed by The International Institute for Sustainable Development {IISD} that there can be future security threat of climate change. This research was conducted by the neutral third party in order to conclude and help the avert and dispute may arise from climate change for example of scarcity of water in this region. The researcher analysis the future dispute and try to avail various suggestion and strategies in order to dodge the potential dispute that might arise in historically volatile region. The third party came with following findings and suggestions in order to provide the proper appropriate advices that can be used and avoid the future threat in much efficient mannered and whole process of the research was conducted in much unbiased and informative manner. Sometimes mediators also plays role in order to reduce the tension among the parties in dispute and try to maintain the situation by providing the correct information to both parties by acting as messenger, that helps the parties in dispute to take sensible steps against each other and try to resolve the said issues without taking any adverse steps that can harm to both parties. The example of Nigerian Civil War that took place in Year 1967-1970. In which various great leaders like Quakers Adam Curle, John Volkmar and Walter Martin acted as Mediators and help to maintain the situation and lower down the tension among the parties in dispute, that worked in much effective manner in order to reach down to effective solution that helped to end the war.

SOME EXAMPLARY MEDIATION IN INTERNATIONAL PLATFORM:

  IN last year, 46 Nations have signed the International Treaty on MEDAITION in which two great power of economies also participated like CHINA and UNITED STATES, alonf with three and four largest economies in  Asia where  China, India and south Korea held there meeting in Singapore and led down the foundation of the International Treaty on Mediation. This treaty will provide overall settlement of the disputes among the signatory countries of the Mediation treaty will resolve there dispute through Mediation process in order to maintain the International relation and keep harmony in the International space and this treaty is also known as SINGAPORE CONVENTION on International Settlement Agreement and has been attended by 70 countries Senior officials in order to show the trust and respect towards each other. Still it remains in doubt weather that Singapore convention will get success or not but the actual essence of the agreement will rely mostly on the enforcement of settlement agreements International framework to make mediation more power full aspect and choice in order resolve the dispute by the parties having issues.

UNCITRAL MODEL LAW ON International commercial mediation and INTERNATIONAL SETTLEMENT Agreement resulting from Mediation:

The main purpose of the this designed is to uplift the states and provide them reforming and updated laws in order to make procedure more effective in Mediation and also make provision to standardize the rules and process for reducing the area of doubt during the Mediation. This form will encourage this states in order to take part in this process and ensure to get fair and acceptable solution for the parties in dispute. This model was adopted in year 2002 and was knowing “Model Law on International Commercial Concillation”  and was further it have been interpretated that mediation and conciliation can be used interchangeable and further have been noted that the change in terminology haven’t created any and implication on the conceptions of the model. In order to be aware of the uncertainty in absence of the statutory provision, model provide proper guidelines to the mediator in order to follow the sets of rules which will maintain the process standard and relevant.

STATE TO STATE MEDIATION PERSPECTIVE FROM INDIA:

India have shown positive perspective towards the State to state mediation in order to resolve International dispute more effectively other then the rule and laws laid down by the International dispute resolution. They have adversarial system in order to resolve the system. India have shown always positive aspects in order to uses softer technique in order to solve the International dispute rather then using harsh litigation in which there will be more probability of relation get strained between the parties dispute. While being the original member of the UNITED NATION CHARTER, India have all supported and shown policies of pacific settlement of disputes. This policies are mentioned in the constitution of India and also in the International Diplomacy by possessing the principles of PANCHSHEEL and also shown the support to the alternative dispute settlement institution ASIAN-AFRICO LEAHL CONSULTATIVE ORGAINSATION (AALCO). This values and rules provide them amicable and peaceful settlement and also resembles the India’s perspective towards the trade and investment arena in the global market. This leads to door open by the India in order explore new ideas of providing India as a neutral party in the International disputes mostly in the Asia-Pacific Regional Mediation Organization.

OVER ALL ASPECTS OF MEDIATION IN DIFFERENT PARAMETRES INTERNATIONAL CONFLICTS:

 In many countries there is uniform pattern in order to mediating the Industrial Disputes. In case of labour management the conflict does not rely totally on the mentioned agreement but also on the machinery to settle  the capacity, in many instance the the government provides mediator in order to resolve the disputes. In many countries like US federal government , satte or the local government provides various mediator in order to resolve the issues and also rely on the mediation. Now a days western Europe appoint there mediator in all the Industrial Disputes and labour in order to reconcile the issues in much effective mannered. In many instance the government have made mediator agency buy the government, have been embraced with the power in order to intervene in any dispute which have public interest in it.

EXAMPLES ARE FOLLOWS:

Great Britain in 1825 between Portugal and Brazil: of the great powers in 1868-69 between Greece and Turkey were strained over the Crete and the Pope Leo XIII in 1885 between the Germany and the Spain in dispute of Caroline Island.

Further the importance of the Mediation have been realized by the all international countries in order to reach the solution. In making more further impactive steps towards the Mediation they made in the HAGUE CONVENTIONOF 1899 and 1907 and the league of Nations Covenant. This leads to further in to the Charter of United nations that disputes need to be solved in much peace full mannered and maintain the relationship.

There are many disputes which have been referred to the Mediation by discussing the Council or in the Assembly. In May 1948, The General Assembly have appointed a mediator in order to resolve the dispute in region of Palestine.

In the season of spring and winter of 1949 a mediator was chosen to conclude armistice agreements between the Israel and the other four Arabs countries. Later on The General Council have made mandatory for the Mediation for various disputes arisen from the International outlook and also made mandatory function. The following commission are like Indonesia, commission of India – Pakistan, the Palestine Conciliation commission and the commission of Korea.

The men behind the process to become mandatory was secretaries – general, especially Dag Hammaeskjold, have made great efforts in order to deal with the diplomacy that can be rigid.

CONCLUSION:

 As far as Mediation is concerned its been in to practice from several years and played and vital role in order to resolve the dispute and also to provide win -win situation to the both the parties without putting and party unheard and not given opportunity to express their views regarding the issues. The Mediation in international conflicts not only resolve the disputes but also providing of the best way to deal the conflict and global level. Mediation in international have became one of the best way to handle the International diplomacy. This have been encouraged by the all individual, state, nations and other organization to pull out the solution in much efficient mannered and also not allowed any party in strong position to overcome or possessed there dominance in the process.

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